First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law “is content based or content neutral is not always a simple task.” 1 A content-neutral law that imposes only an incidental burden on speech “will be sustained if ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’” 2 Similarly, the government “may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’” 3

A series of cases allowing speech to be regulated due to its “secondary effects” is related to these content-neutral standards.4 In Young v. American Mini Theater, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that adult theaters showing motion pictures that depicted specified sexual activities or specified anatomical areas could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.5 The Court endorsed this approach in Renton v. Playtime Theatres, rejecting a constitutional challenge to a zoning ordinance restricting the locations of adult theaters after concluding that although the ordinance targeted businesses selling sexually explicit materials, the law was content-neutral because it was justified by studies showing adult theaters produced undesirable secondary effects, rather than being justified by reference to the content of the regulated speech.6 By contrast, for example, the Court rejected one city’s argument that it could prohibit as a nuisance “any movie containing nudity which is visible from a public place.” 7 Concluding that the ordinance was not well tailored to the city’s stated goals of protecting the privacy interests of passers-by or protecting children, the Court held instead that the law was an unconstitutional content-based regulation.8

Footnotes

1

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994).

2

Id. at 662 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)). See also, e.g., San Francisco Arts & Ath., Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536–40 (1987) (applying this standard to uphold an incidental speech restriction prohibiting certain uses of the word “Olympic” ). The distinction between, on the one hand, directly regulating, and, on the other hand, incidentally affecting, the content of expression was sharply drawn by Justice John Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961): “Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.” Cf, e.g., Arcara v. Cloud Books, 478 U.S. 697, 707 (1986) (upholding the application of a statute authorizing closure of places of prostitution to an adult bookstore, saying O’Brien was not applicable to “a statute directed at imposing sanctions on nonexpressive activity” ).

3

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see Amdt1.7.7.1 The Public Forum.

4

See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (saying an ordinance was content-neutral where the law was justified by a desire to combat undesirable secondary effects of speech, rather than justified by reference to the speech’s content). Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ( “Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech[.]” ).

5

427 U.S. 50, 70 (1976) (plurality opinion) (saying governments could regulate “the places where sexually explicit films may be exhibited,” drawing a line “on the basis of content without violating the government’s paramount obligation of neutrality” because the place-based regulation was unaffected by the viewpoint or message of the film); id. at 82 n.6 (Powell, J., concurring) (saying the regulation was not impermissibly content-based when it treated “certain movie theaters differently because they have markedly different effects upon their surroundings” ).

6

Renton, 475 U.S. at 48, 51. The Supreme Court also upheld zoning of sexually oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). Cf. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566–72 (1991) (plurality opinion) (upholding application of Indiana’s public indecency statute to prohibit totally nude dancing under the O’Brien standard); id. at 582 (Souter, J., concurring) (saying he would uphold the law based on “the State’s substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents’ establishments” ); Erie v. Pap’s A.M., 529 U.S. 277, 290 (2000) (plurality opinion) (upholding the application of a statute prohibiting public nudity to an adult entertainment establishment, citing both O’Brien and Renton and noting that “one purpose of the ordinance is to combat harmful secondary effects” ); id. at 310 (Scalia, J., concurring) (expressing doubt about the “secondary effects” ).

7

Erznoznik v. City of Jacksonville, 422 U.S. 205, 208 (1975).

8

Id. at 211–18.